A Man Doesn't Want To Live With His Wife But Doesn't Want To Divorce Her For The Sake Of The Children

Islamic Rulings -
Living Shariah Verdicts

Islamic Questions & Answers

A man has in the past had some major problem
with his wife. Neither she, nor he want divorce as
they have 3 children, yet he cannot live with her and
has left the country. He would like to remarry in the
new country of residence, but is afraid of the
condition of equity of time between the two wives and
that he will be called to account for it before Allah.
His wife will not willingly relinquish her rights as
she wants him to return to her, nor will she accept a
second marriage... Is it halal for him to tell her
that he will retain her as a wife only under the
condition that she relinquish her rights to his time
to a second wife? He does not want to oppress himself
nor does he want to oppress her.. what are his
options?

Praise be to Allaah.

If he has no interest in his present wife, there is
nothing wrong with divorcing her and marrying another,
but if he and she come to an agreement whereby she may
remain his wife for the sake of the children, there is
nothing wrong with this either. If he gives her the
choice between divorce and giving up her rights to his
time and his spending on her, in whole or in part,
this is not oppression. Oppression is when he keeps
her by force without giving her any of her rights
whilst at the same time refusing to give her a
divorce.

The evidence (daleel) that the situation described
above is permissible is to be found in the hadeeth
narrated by Imaam al-Bukhaari from ‘Aa'ishah (may
Allah be pleased with her), which comments on the
aayah (interpretation of the meaning): "And if a woman
fears cruelty or desertion on her husband's part…"
[al-Nisaa' 4:128]. She said: "This was a woman who was
married to a man who did not care for her, so he
wanted to divorce her and marry someone else.
(According to another report narrated by al-Bukhaari
she said: He was a man who saw something he disliked
in his wife, so he wanted to divorce her.) She said to
him: ‘Keep me, do not divorce me. Marry someone else
and I will absolve you of your obligation to spend on
me and share your time with me.' This is what Allaah
referred to when He revealed the aayah (interpretation
of the meaning): ‘… there is no sin on them both if
they make terms of peace between themselves; and
making peace is better…' [al-Nisaa' 4:128]." (Reported
by al-Bukhaari, 4807)

"This was a woman who was married to a man who did not
care for her" means that he did not love her or want
to treat her well or stay with her. "I will absolve
you of your obligation towards me" means: leave me
without divorcing me. Concerning this issue, Allaah
revealed the words (interpretation of the meaning):
"And if a woman fears cruelty or desertion on her
husband's part…" [al-Nisaa' 4:128]. ‘Ali reported that
this was revealed concerning a woman who is married to
a man and does not want to leave him, so they come to
an agreement that he will visit her every three or
four days."

Al-Tirmidhi reported via Sammaak from ‘Ikrimah from
Ibn ‘Abbaas that he said: "Sawdah was afraid that the
Messenger of Allaah (peace and blessings of Allaah be
upon him) would divorce her, so she said: ‘O Messenger
of Allaah, do not divorce me; give my day to ‘Aa'ishah.'
So he did so. Then this aayah was revealed." Al-Tirmidhi
said: "(This is) hasan ghareeb." I say: there is
corroborating evidence in a hadeeth from ‘Aa'ishah
narrated by al-Bukhaari and Muslim, without referring
to the revelation of the aayah. (From Fath al-Baari).

The hadeeth mentioned by al-Haafiz ibn Hijr (may
Allaah have mercy on him) is in Sunan al-Tirmidhi,
2966, where it is reported that Ibn ‘Abbaas said:
"Sawdah was afraid that the Prophet (peace and
blessings of Allaah be upon him) would divorce her, so
she said: ‘Do not divorce me. Keep me and give my day
to ‘Aa'ishah.' So he did so, then Allaah revealed the
aayah: ‘… there is no sin on them both if they make
terms of peace between themselves; and making peace is
better…' [al-Nisaa' 4:128]. So whatever they agreed
upon was permissible." It is as if the last sentence
was the comment of Ibn ‘Abbaas. Abu ‘Iesa said: this
is a hasan ghareeb hadeeth.

Al-Mubaarakpoori said, commenting on this hadeeth:

‘Sawdah was afraid…' This refers to Sawdah bint Zam'ah
ibn Qays al-Qurashiyyah al-‘Aamiriyyah. The Messenger
of Allaah (peace and blessings of Allaah be upon him)
married her in Makkah after Khadeejah had died, and
consummated the marriage there. The scholars agree
that he consummated his marriage to her before he
consummated his marriage to ‘Aa'ishah, and she
migrated to Madeenah with him. She died at the end of
the khilaafah of ‘Umar ibn al-Khattaab.

‘…was afraid that the Prophet (peace and blessings of
Allaah be upon him) would divorce her, so she said…'
Al-Bukhaari and Muslim reported from ‘Aa'ishah that
Sawdah bint Zam'ah gave her day to ‘Aa'ishah, so the
Prophet (peace and blessings of Allaah be upon him)
used to give ‘Aa'ishah her own day and that of Sawdah.
Al-Haafiz said in al-Fath: Abu Dawood reported this
hadeeth (from ‘Aa'ishah): ‘The Messenger of Allaah
(peace and blessings of Allaah be upon him) never used
to prefer any of us over others in sharing his time
(i.e., he was fair in dividing his nights among his
wives, and each one of them had her allotted night).
When Sawdah bint Zam'ah grew old and feared that the
Messenger of Allaah (peace and blessings of Allaah be
upon him) might divorce her, she said: ‘O Messenger of
Allaah, my day is for ‘Aa'ishah,' and he accepted this
from her. Then concerning this and similar cases, the
aayah was revealed (interpretation of the meaning):
‘And if a woman fears cruelty or desertion on her
husband's part…' [al-Nisaa' 4:128]. These reports
agree that she feared divorce and so gave her day to
‘Aa'ishah.

Then al-‘Allaamah al-Mubaraakpoori said: The aayah may
be explained thus: ‘If a woman fears' means if she
expects. ‘Cruelty' means that he spurns her by
refusing to sleep with her or by spending less on her
than he should, because he dislikes her and wants to
marry someone more beautiful. ‘Desertion' means that
he turns his face away from her. ‘There is no sin on
them both if they make terms of peace between
themselves' means with regard to the sharing of his
time and his spending on her, i.e., he should still
give her something in this regard (sharing time or
spending) in order to preserve the relationship: if
she accepts, this is OK, otherwise the husband must
either give her her full rights or divorce her.
‘Making peace is better' means better than separation,
cruelty and desertion. Whatever they agree upon
between themselves is permissible.